Her Majesty the Queen - v. -, 2014 SKPC 185

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 185 Date: December 18, 2014 Information: 24537712 Location: Assiniboia _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kevin C. Metzger Appearing: Rob Parker For the Crown Merv Nidesh, Q.C. For the Accused JUDGMENT M. GORDON , J [ 1 ] Kevin C. Metzger is charged that on or about November 7, 2013, at or near Assiniboia, in the Province of Saskatchewan, did having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did operate a motor vehicle contrary to s. 253(1) (

b) of the Criminal Code and count #2, and further did while his ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle contrary to s. 253(1)(

a) of the Criminal Code . [ 2 ] The Crown proceeded summarily and the trial took place in Assiniboia on Thursday, August 21, 2014. The trial proceeded as a blended trial and voir dire on the Charter application with an agreement that upon my determination of the application, the

admissible Crown evidence would be applied to the trial proper. Both counsel indicated they intended to call no further evidence at trial so all matters will be dealt with in this decision. The matter was adjourned to allow counsel to make written submissions. [ 3 ] I will deal with count #2 first, that being the impaired driving charge. Neither counsel made written submissions with respect to this count. When I asked counsel whether they wanted to make any oral submissions with respect to the impaired driving charge, both counsel indicated that they were in agreement the evidence does not support the charge.

The impaired driving charge, is dismissed. [ 4 ] I will now deal with the remaining count #1. Colby Thomas was the first Crown witness sworn in on both the trial and the voir dire . Mr. Thomas is 30 years old and has resided in Rockglen, Saskatchewan since 2005. On November 7, 2013, he was driving from Limerick to Assiniboia. It was after supper and it was dark. He was returning from a meeting in Swift Current. Mr. Thomas noticed east of Limerick a truck straddling the centre lane and swerving a bit. He was trying to pass this vehicle which was a semi- tractor.

The speed limit on this road is 90 or 100 kilometres per hour. Mr. Thomas was not that sure. This is the No. 13 Highway, which is a two lane highway going east and west. The road conditions were excellent and the road surface was very smooth. There is a wide driving lane. Mr. Thomas recalls this semi-tractor trailer straddling both lanes when an oncoming car approached this semi would return to its own lane. [ 5 ] Initially Mr. Thomas thought maybe the driver was tired or distracted by using his cell phone. After this manner of driving went on for about 10 minutes, Mr.

Thomas became more concerned and he actually got a bit scared. He noted that the semi proceeded into Assiniboia and then headed out on the 717 grid road. The semi slowed down but did not fully stop at the stop sign. Mr. Thomas got behind this unit again and flashed his lights and the semi driver slowed and pulled over to the shoulder. Mr. Thomas got ahead of him and got out of his truck. He wanted to make sure the driver of the semi was okay. However the trucker went by him and went on the truck route and then Mr.

Thomas saw the vehicle stop with its four-way flashers on. [ 6 ] The semi had pulled over with its passenger side tires on the grassy shoulder of the ditch. Mr. Thomas approached the semi and asked the driver if he was okay. Mr. Thomas told the driver he was all over the road. The driver appeared okay and told Mr. Thomas that he was tired, that he had hauled some cows that day. Mr. Thomas offered to drive the truck to the stockyards and park it. He told the driver that he had the proper licence to drive this type of unit. The driver of the semi said he was fine and he was ready to go.

At one point the operator of the truck asked Mr. Thomas if he wanted to drive him to Crane Valley but Mr. Thomas declined. [ 7 ] Mr. Thomas observed the trailer moving as it was sloped into the ditch and the driver’s side tires of the trailer were lifting off the road as the weight was shifting. Mr. Thomas could hear the driver shift the truck into gear and then the trailer flopped over onto its side. At this point Mr. Thomas phoned 911. He then went to the semi to make sure the driver was okay. He noted the driver getting up. The fire department showed up first and then the ambulance and then police.

Another truck driver had already stopped and was helping the driver of the semi look for his glasses. Mr. Thomas was making sure everything was okay. He helped the driver out of the truck and also helped get the cattle out. He pulled out a case of beer from the tractor trailer but nothing else. [ 8 ] On cross-examination Mr. Thomas agreed that the driver’s speech seemed okay. Mr. Thomas was not worried about alcohol and in fact told the police he did not smell any alcohol coming from the driver. Mr. Thomas was not able to recognize the driver of the unit in Court. [ 9 ] Cst.

Cameron McKay was sworn in on both the trial and the voir dire as well. At the time he had been with the RCMP five and a half years and in November 2013, he was stationed in Assiniboia, Saskatchewan. He received a call from his communications centre that there had been a semi rollover. This call came in at 6:40 p.m. He arrived at the scene at 6:45 and noticed a man outside his semi-trailer on the south side ditch and another man standing by his pickup truck who said he was Colby Thomas, the person that had called in the accident. Cst. McKay recalls the fire department arriving within a minute.

He noticed a man trying to get out of the semi. He recalls the fire department and possibly a couple of bystanders assisted the fellow getting out of the semi. At this point Cst. McKay watched. There was only one man that got out of the semi-trailer unit. This individual complained of injuries so the officer went to get the EMS people. The officer stood outside the ambulance and waited for them to treat this individual. After EMS finished, they told the officer he could come over. Cst. McKay had concerns as he could smell a strong odour of alcohol on the breath of this male person.

The police officer was crouched and leaning into the ambulance. The police officer asked for the driver’s licence of this male person. Upon request of Cst. McKay, the male person produced his driver’s licence which indicated he was Kevin Metzger. Cst. McKay identified this individual in Court as well.

[ 10 ] Cst. McKay’s initial contact with Mr. Metzger was at 7:10, which would be about 20 to 30 minutes after he arrived on scene. Mr. Metzger admitted he had drank earlier in the day, a few hours prior to this incident. Cst. McKay did not speak with Mr. Metzger until he had received medical assistance from the emergency medical personnel on site. Cst. McKay told Mr. Metzger he suspected that he was impaired and asked him to come back to the police vehicle to provide a sample of his breath into the approved screening device. At this point, the officer relied on the strong odour of alcohol coming from Mr.

Metzger, slurred speech and bloodshot eyes. Mr. Metzger agreed and was placed in the back seat of the police vehicle. At 7:15, Cst. McKay read the approved screening device demand from his card. Mr. Metzger responded “yes”. There was a fail result and the officer explained what this meant. At this point, it was five minutes since the officer’s first encounter with Mr. Metzger. At 7:17, the officer formally placed Mr. Metzger under arrest for impaired operation of a motor vehicle, read him his Charter rights and at 7:18, the breathalyzer demand was read from his police card. On both occasions Mr.

Metzger responded in the affirmative. He was also given the police warning which Mr. Metzger indicated he understood. [ 11 ] At 7:21, Mr. Metzger was transported to the Assiniboia Detachment for the breathalyzer test. They proceeded directly to the detachment and arrived at 7:30, where Mr. Metzger was taken into the interview room. Mr. Metzger was given an opportunity to talk to legal counsel. Mr. Metzger was asked who he would like to call and he replied “Ms. Mountain”. The police officer dialled Ms. Mountain’s number, confirmed it was in fact Ms. Mountain and gave the phone to Mr.

Metzger and allowed the conversation to occur in private. At 7:41, Mr. Metzger finished talking with Ms. Mountain and when asked if he was satisfied with the conversation, Mr. Metzger replied “yes”. [ 12 ] Cst. McKay checked for the presence of anything in Mr. Metzger’s mouth and began the 15 minute observation period which allows any mouth alcohol to dissipate and watched to make sure Mr. Metzger was not consuming anything or did not burp or belch. [ 13 ] Cpl. John Fipps was the approved Intoxilyzer technician and at 8:00 p.m., the first sample was taken. Mr.

Metzger was placed back into the interview room and observed until 8:20 when the second sample was taken. Cpl. Fipps indicated that both tests were satisfactory and that both were over .08. Cst. McKay was provided with the Certificate of Qualified Technician. He received it directly from Cpl. Fipps and served Mr. Metzger with this. The certificate was entered as Exhibit P-1 on the voir dire . Mr. Metzger was released on a promise to appear and his daughter was contacted. At 8:45 p.m., Mr. Metzger was released from custody. [ 14 ] On cross-examination Cst.

McKay agreed that his notes indicate at 19:10 the identity of the accused being Kevin Metzger, 19:15 ASD demand and at 19:18 a Charter and arrest for impaired driving and 20:45, released from custody. Otherwise there were no particulars in the notes that were made at the time. The following notes were made shortly thereafter about strong odour of beverage alcohol. CHARTER ARGUMENT [ 15 ] The defence gave written notice of several Charter violations, namely s. 10(a), 10(b), 8 and 9. The defence submits that Exhibit P-1 should be excluded at the trial proper.

The defence also submits, rather belatedly, that on the trial proper the Crown has not proven beyond a reasonable doubt that a true copy of the Certificate of Qualified Technician was served upon Mr. Metzger. ANALYSIS [ 16 ] It is trite law to say that on an application to exclude evidence pursuant to the Charter , the defence must prove on a balance of probabilities that there has been a Charter violation.

If the defence is successful in that, then an analysis under s. 24(2) of the Charter occurs to determine on a Grant analysis whether this evidence should be excluded. [ 17 ] The first argument I will deal with is whether the accused’s rights under s. 10(

a) of the Charter were violated.

Section 10(

a) of the Charter reads as follows: 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor;

[18] I accept Cst. McKay’s evidence that his first contact with the accused was at 7:10 p.m., when Mr. Metzger was cleared aftertreatment by EMS personnel. Mr. Metzger provided his driver’s licence and said he had drank a few hours earlier. The police officertestified he observed a strong odour of alcohol from Mr. Metzger’s breath. The officer also observed that Mr. Metzger had slurredspeech and red and bloodshot eyes. Cst. McKay told Mr. Metzger he suspected he was impaired and requested Mr. Metzger accompanyhim to the police vehicle to provide a sample of his breath.

At 7:15 p.m. the officer read the approved screening device demand from hispolice issued card and Mr. Metzger sat in the back of the police vehicle. I find that the police officer promptly told Mr. Metzger thereason for his detention and that the ASD demand was forthwith. I have considered in this analysis the Ontario Court of Appeal case ofR v Quansah, 2012 ONCA 123, where at paragraphs 45 to 49 Mr. Justice LaForme stated: [45] In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things.

First, the analysis ofthe forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament’s intention to strike abalance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. [46] Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver hasalcohol in his or her body.

The immediacy requirement, therefore, commences at the stage of reasonable suspicion. [47] Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexibleinterpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to thedetainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officerto discharge his or her duty as contemplated by s. 254(2). [48] Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delaywhere breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed toensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns.These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty.

Anydelay not so justified exceeds the immediacy requirement. [49] Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implementthe detainee’s s. 10(

b) rights before requiring the sample. If so, the “forthwith” criterion is not met. [19] This is not a case of an officer waiting and delaying making the ASD demand or administering the test. [20] Secondly, was there a breach of Mr. Metzger’s rights pursuant to s. 8 and 9 of the Charter? An approved screening devicedemand pursuant to s. 254(2) has a subjective and objective component to it. The threshold is low but, at the time the demand wasmade, there must be evidence capable of demonstrating that the police officer had a reasonable suspicion that the driver had alcohol inhis body.

The officer had been called to an accident scene with a semi-trailer tipped sideways in the ditch. Here, Cst. McKay testifiedthat he approached Mr. Metzger as soon as the EMS personnel advised they were finished with him. The officer was four to five feetaway from Mr. Metzger and could smell a strong odour of beverage alcohol on Mr. Metzger’s breath. This alone, on the basis of R vButchko, 2004 SKCA 159, give the officer grounds to make the approved screening device demand.

In addition, the officer testified Mr.Metzger responded to his question about alcohol consumption saying he had some drinks a few hours earlier. The officer also noted Mr.Metzger’s speech to be slurred and he had bloodshot eyes. The police officer also testified he observed a man later identified as theaccused trying to exit the semi-trailer unit. He was assisted by fire department personnel and others. There was only one individual thatexited the truck. This individual complained of injuries and therefore was attended to by the EMS personnel first.

I find there wassufficient evidence to satisfy the test that there was a basis to make the approved screening device demand. [21] The next question is whether the police officer had reasonable and probable grounds to make an Intoxilyzer demand pursuantto s. 254(3) of the Code.

Based on R v Gunn, 2012 SKCA 80 , 2012 SJ No 503, and in particular paragraphs 7, 8, 15 and 18, Iam satisfied with the observations of the police officer, the admission of drinking, the accident and the fail on the approved screeningdevice that the officer had the necessary information on both a subjective and objective basis to make a lawful demand under s. 254(3). [22] As well, in R v Bernshaw, [1995] 1 SCR 154, the Court stated that a fail result on an approved screening device is sufficient toestablish grounds to make the Intoxilyzer demand. [23] The next issue is whether there was a violation of the accused’s s. 10(

b) Charter right to counsel.

Section 10(

b) of theCharter reads as follows:

10. Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right; [24] Mr. Metzger argues that the officer provided the right to counsel at roadside at 7:17 p.m., just after arresting the accused forimpaired operation of a motor vehicle. Subsequent to that, at 7:18, the officer made the Intoxilyzer demand under s. 254(3). The officerread the accused his Charter rights from the card that he carries with him and the officer then asked the accused if he understood andwanted to call a lawyer now. Mr. Metzger responded “yes”. At 7:21, the officer proceeded with Mr.

Metzger to the AssiniboiaDetachment where they arrived at 7:30. Mr. Metzger was taken directly into the interview room and given an opportunity to contactlegal counsel. At Mr. Metzger’s request, Ms. Lee Mountain was contacted, a local Assiniboia lawyer. At 7:41, Mr. Metzger finishedtalking to counsel and the observation period started. [25] Defence counsel argued that Mr. Metzger should have been allowed to contact counsel while in the back of the police vehicleat the scene of the accident. In support of this proposition counsel filed the case of R v Caplette, 2010 SKPC 32.

In that case, JudgeGreen accepted the following evidence: The officer allowed Mr. Caplette to talk to Legal Aid duty counsel on the hands free cell phone located in the police vehicle. The officerexited the vehicle to allow Mr. Caplette to speak with a lawyer in private. [26] There was no s. 10(

b) argument made and Judge Green did not comment on this issue. He accepted the police officer’sevidence that this is what she did but his decision did not consider this point. [27] Counsel also filed the case of R v Devries, 2009 ONCA 477 , 95 OR (3d) 721 (CA ON). This is a case that does dealwith the use of the word “now” in the context of the of s. 10(b).

Doherty J.A. put the question this way “is a police officer who arrestsan individual at the roadside on an impaired driving charge required when advising that person of the right to counsel to tell the detaineethat should he or she choose to consult counsel, that consultation will occur at the police station and not the roadside?” Doherty J.A.discusses the right under s. 10(

b) in some detail at paragraphs 26 through 40. In particular, at paragraph 35, the judge states: I am also not moved by the contention that the use of the word “now” in advising a detainee of his or her right to counsel may bemisleading to some detainees in some situations. Virtually any word in the English language has some ambiguity and is capable of takingon different meanings to different people. Any word or combination of words has the potential to mislead somebody at some time.

Forexample, had the officer used the language required by the Appeal Judge, a detainee might well have believed that he or she couldcontact their lawyer at the police station, but only after the breathalyzer was administered. That detainee would have been misled by thelanguage that the Appeal Judge would require the police to use. [28] And, at paragraph 36: It is fruitless to search for phrasing that does not have any potential to mislead anybody in any given situation. Rather than pursuing thehopeless task of finding absolutely unambiguous language, compliance with s. 10(

b) must be measured by its ability to convey theessential character of the s. 10(

b) rights to the detainee -- the right to immediate access to a lawyer, including access through the toll-freenumber to immediate free legal advice. [29] At paragraph 37: There is value in the use of a standardized s. 10(

b) caution which complies with the informational requirements established in theSupreme Court of Canada jurisprudence. Attempts to graft onto the standardized caution fact-specific information as to where and whenthe detainee can exercise the right to counsel, if he or she chooses to do so, is more calculated to create litigation than to advance the

purposes of the constitutional right protected by s. 10(b). [ 30 ] At paragraph 38: I, of course, do not suggest that the police are never obligated to go beyond the information required to comply with the informational component of s. 10(b). Questions or comments made by a detainee or other circumstances at the time the s. 10(

b) caution is given may indicate a misunderstanding by the detainee of the nature of the s. 10(

b) rights. In those circumstances, the arresting officer will have to provide a further explanation of the rights. [ 31 ] The judge goes on to elaborate and refers to other cases in which the Court found, based on the circumstances in which the s. 10(

b) caution was given and the response of the detainees, that some detainees did not understand the nature of their rights. In those cases, the arresting officer must go beyond the informational component and provide a further explanation to the detainee. [ 32 ] It is noted in this case as well, which differentiates it from some other cases especially from other jurisdictions, that the Charter rights that were given in this case included the reference to contacting Legal Aid, free of charge, and providing a toll-free number. [ 33 ] Mr.

Metzger did not testify and there is no evidence that he was confused, misunderstood the right, had asked to call a lawyer immediately at the scene on his own cell phone or asked the officer for a cell phone. Mr. Metzger was transported within minutes to the RCMP Detachment where he was allowed to contact counsel of choice. No evidence was obtained from him in the intervening time.

SERVICE OF CERTIFICATE [ 34 ] Defence counsel did not raise the issue of whether there had been proper service of the Certificate of Analyses within the provisions of s. 258 of the Criminal Code until the adjournment date for oral argument. Defence counsel asked the Court to review the evidence to ensure that there was proper service in accordance with the provisions of the Criminal Code . [ 35 ] The Certificate of Qualified Technician is an important document as it provides the Crown with several shortcuts.

It must be properly completed and served, and notice of the Crown’s intention to produce the certificate at trial must be given to an accused person. Cst. McKay testified that the breath technician, Cpl. Phipps, completed the certificate and gave it directly to Cst. McKay for service on Mr. Metzger. Cst. McKay served Mr. Metzger with this certificate immediately thereafter and at the same time he gave Mr. Metzger his release and SGI documents. Mr. Metzger was released shortly thereafter. There was no other evidence on this point and as I say, it was raised by the defence, in my view, as an “afterthought”.

In this situation, I am satisfied beyond a reasonable doubt that the certificate was served in accordance with the provisions of the Criminal Code . CONCLUSION [ 36 ] As a result of finding no Charter violations, the Certificate of Analyses is admitted as evidence on the voir dire . As agreed by counsel, all evidence on the voir dire is applied to the trial proper. There was no further evidence and therefore I am satisfied beyond a reasonable doubt that Kevin Metzger is guilty of count #1 as charged. M. Gordon, J